Mothers More In Need Of Help Than Handcuffs

BOSTON — The turf around the courthouse in El Cajon, Calif., looks a lot less like solid legal ground and a lot more like a slippery slope.

This is where Pamela Rae Stewart was arrested, charged and jailed for neglect of a fetus. The authorities claim that the mother, 27, didn't follow the doctor's orders. Stewart was charged with using amphetamines during her pregnancy, but that is not the primary offense. According to Harry Elias, the deputy district attorney, the woman had a condition called placenta abruptio, a tendency for the placenta to separate from the uterine wall. ''She was advised,'' says Elias,''that if she began to hemorrhage she should go to the hospital right away. Instead she waited 12 hours and by the time she got there, the baby was in fetal distress.''

Last Nov. 23, Stewart's baby was born with massive brain damage, and on Jan. 1 the baby died. Someone in the hospital notified the child protective services and someone there notified the police, who in turn notified the D.A.'s office.

The charge against her is a misdemeanor: withholding medical care. Under California law, no parent can ''willfully omit to provide food, clothing, shelter, medical attendance or other remedial care'' to a child, and the word ''child'' specifically includes the fetus. The clause was written in 1925, largely to force fathers into paying support to pregnant women. But in El Cajon, it is being used in way that fits these times all too well.

In recent years, science has fixed its focus on the fetus. We have learned fascinating details about the complex biology of pregnancy. We know a good deal about genetics and even more about the womb's environment. Our society allows a woman to choose abortion, but at the same time we hold her more responsible for the fetus she chooses to carry. There is a shared belief that a pregnant woman has an obligation to do what she can to ensure a healthy baby.

Now doctors and the law are siding with that fetus against the mother. Pregnant women have been committed against their will to mental hospitals because they were drug addicts. In Georgia and Colorado, two women were forced to have cesarean sections ''for the sake of the child.'' In Chicago, a judge gave a hospital lawyer temporary custody of a fetus when the woman refused to consent to surgery.

It's one thing to argue that a woman has a moral obligation, it's quite another to turn it into a legal obligation. This is where the slope gets slippery.

''I have never heard of a vaguer crime than 'fetal neglect,' '' says George Annas, Boston University medical ethicist. ''It gives you a license to do whatever you want to a woman.''

Under this rubric, the doctor has the authority to make decisions for the woman and the law enforces them. ''If the doctor says, 'I think the fetus is endangered by this woman,' are they going to lock her in a hospital?'' asks Annas. And what if a doctor can detect a problem in utero that might be corrected by fetal surgery? Would it be fetal neglect to refuse?

There are people, including the D.A.'s office in La Cajon, who argue that there's no difference between withholding medical treatment from a 35-week-old fetus or from a day-old baby. But there is one crucial difference: to get to the fetus, the law has to reach literally into a woman's body.

Many of us recoil from this intrusion into a woman's autonomy, and yet also share the desire that babies be born as healthy as possible. It is, in real life, rare that these two conflict. Women who choose to have their babies are more likely the advocates than the enemies of these offspring. They are more in need of help than handcuffs.

Stewart, having lost her child, was arrested for disobeying her doctor's orders. If this is a landmark case, then the land is easy to assay. At the bottom of this slope is a country where pregnant women must live by medical rules in the custody of the law.

In Annas' fantasy, this place would look ''like a giant country club for pregnant women. It would be pleasant, everyone would be required to jog every day and eat healthy food and do things that were good for the fetus.'' And after a while, they might not even notice the fence that runs all around them.